COURT FILE NO.: FS-15-38076 DATE: 2021 02 18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BIMPE ADELEKE Applicant – and – ADEDOYIN AJANAKU Respondent

Counsel: Simeon Oyelade, for the Applicant Adedoyin Ajanaku, Self-Represented

HEARD: February 9 and 10, 2021

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

The Litigation History

[1] In a decision dated October 5, 2018, reported at 2018 ONSC 5888, this Court resolved some outstanding property matters between the Applicant wife, Bimpe Adeleke (“Adeleke”), and the Respondent husband, Adedoyin Ajanaku (“Ajanaku”).

[2] For the background of that 2018 decision, set out below are paragraphs 1 through 5 of the Reasons for Judgment.

[1] The Applicant wife, Bimpe Adeleke (“Adeleke”), and the Respondent husband, Adedoyin Ajanaku (“Ajanaku”), are divorced spouses who have resolved all of their marital issues except those related to property. Adeleke is 40 years of age and Ajanaku is 35 years of age.

[2] They share a son together, currently 11 years old. That child lives with Adeleke.

[3] The parties are from Nigeria. They met in Canada in 2005. They were married in Toronto in May 2006. Their son was born in February 2007.

[4] A short trial was held in Milton over less than two full days. The subject matter had already been identified by the Justice who conducted the Trial Management Conference on March 23, 2018: (i) an alleged Nigerian property that Ajanaku wants factored into the equalization of net family property calculation, and (ii) an alleged property in Clarington (Newcastle), Ontario that Adeleke says was owned beneficially by Ajanaku.

[5] There is an important factual dispute that must be resolved, that is, when did the parties separate? Adeleke says that they separated in January 2014. Ajanaku says that they separated much earlier than that, in or around March 2009.

[3] For the essence of the 2018 decision, set out below are paragraphs 45, 50-56, and 59 of the Reasons for Judgment.

[45] First, what is the separation date? This Court declares that the parties separated on January 1, 2014.

[50] This Court declares that, effective March 6, 2008, Ajanaku was the beneficial owner of the Clarington property. He became the title owner on February 25, 2013.

[51] Hence, it is ordered that Adeleke is entitled to equalization of the Clarington property.

[52] As requested by Adeleke’s counsel in closing submissions, this Court orders that Ajanaku shall not deplete the value of, transfer, charge, or otherwise deal in any way with the Clarington property.

[53] This Court further orders that, within 60 calendar days of October 5, 2018, Ajanaku shall provide to counsel for Adeleke a written accounting, with supporting documentation, of (i) all of the rental income attributable to the Clarington property since March 6, 2008, plus (ii) his costs incurred on the property since the same date, plus (iii) the details of his purchase of the property on February 25, 2013, plus (iv) the details of his refinancing of the property in 2017.

[54] Adeleke’s counsel requested an order that the property be sold and the net proceeds of sale be paid into Court. In my view, it is premature to order that. The accounting needs to be provided. Then the equalization payment owing to Adeleke needs to be determined. Then an opportunity needs to be provided to the parties to negotiate how that will be paid - Ajanaku may prefer to pay Adeleke with other available funds and keep the property for himself. He should have that choice.

[55] If the equalization payment is not satisfied within a reasonable period of time, then Adeleke or her counsel may bring the matter back to Court for further direction.

[56] Third, what should happen with regard to the land in Nigeria? Without any supporting documentation of any kind, and without any corroborative testimony of any kind, and without hearing from Adeleke’s mother, I am not satisfied that there is any land in Nigeria that is owned by the parties jointly or either of them individually. Even if there is, I cannot reliably ascertain the value of that land as of January 2014. Thus, this Court makes no order regarding any such land in Nigeria.

[59] This Court orders that Ajanaku shall pay costs to Adeleke in the total, all-inclusive amount of $4500.00.

[4] Much later, on August 27, 2020, my colleague Justice Gibson heard a Motion brought by Ajanaku regarding the same Clarington property that had been a subject of the trial held in October 2018. In His Honour’s Endorsement dated November 10, 2020, at paragraphs 1 through 8, set out below, Justice Gibson framed the issue to be decided and the positions of the parties.

[1] The parties met in 2005 and married in 2006. They separated in 2014. A subject of continuing dispute between them concerns the property at Lot 13, Plan 40M2303 in Clarington, municipally known as 50 Doug Walton Lane in Clarington, Ontario.

[2] This property was one of the subjects of a trial held before Conlan J. in 2018. In his reasons for judgment dated October 5, 2018, Conlan J. found that the parties had separated on January 1, 2014. He further found that, effective March 6, 2008, the Respondent was the beneficial owner of the Clarington property, and that he became the title owner on February 25, 2013. Justice Conlan directed that the Applicant is entitled to equalization of the Clarington property, and that the Respondent shall not deplete the value of, transfer, charge or otherwise deal in any way with the Clarington property. He also ordered that the Respondent provide to counsel for the Applicant a written accounting with supporting documentation of various financial matters. Justice Conlan specified that if the equalization payment is not satisfied within a reasonable period of time, then she might bring the matter back to court for further direction.

[3] Subsequent to an appearance before Baltman J. on July 3, 2019, the parties agreed to settle for $70,000, to be paid after the property was sold.

[4] The property has been vacant since January 2019, up until the time of its sale.

[5] An offer was received for the house on December 9, 2019 for $605,000, to close on January 13, 2020. The Respondent submits that the sale price was $55,000 less than that for which the property was originally listed, and that he incurred additional expenses to repair the property.

[6] The Respondent submits at paragraph 26 of his affidavit that the net proceeds of sale on the property are $170,779.32, which are being held in trust by the real estate counsel on the sale (the Applicant states at paragraph 20 in her affidavit that they are $170,179.37). If the parties take $70,000 each, he says, after deducting expenses there remains roughly $31,000, which would not cover the property bills from 2014-2019, including mortgage, property tax, insurance and utility bills. He says that the equity is $34,731 after expenses. He wants to resile from the settlement offer of $70,000. He asks the court to order the parties to split the net proceeds of sale and the expenses starting on the date of separation.

[7] By his Notice of Motion dated July 30, 2020, the Respondent Adedoyin Ajanaku requests an Order for direction regarding the property at 50 Doug Walton Lane, Clarington, Ontario; an Order that the Applicant pay her share of the expenses starting on the day of separation, January 1, 2014; that the Applicant solely pay the interest incurred on the credit used to finance the Clarington property expenses beginning January 10, 2020; and for costs.

[8] The Applicant Bimpe Adeleke resists the motion. Her version of events is substantially different than that advanced by the Respondent. She asserts that the Respondent has made up spurious figures as expenses he incurred on the house and wants to use that as a deduction on the available sum. She asserts that the Respondent has provided fraudulent income tax returns. She asserts that the Respondent obtained a line of credit on this property from which he has been making withdrawals and using for his own expenses, and that he now seeks to reduce the amount payable to her from the sale of the property.

[5] Justice Gibson dismissed Ajanaku’s Motion (paragraph 14 of the Endorsement). At paragraphs 16 and 17 of the Endorsement, reproduced below, His Honour ordered a trial of the issue of how to split the proceeds of sale of the Clarington property.

[16] In order to resolve this, pursuant to Rule 7.1 of the Family Law Rules, I am ordering the following:

1. There will be a trial of an issue on the issue of how to split the proceeds of sale, to be heard by Zoom. This will necessarily involve determination of how the equalization of net family property ordered by Conlan J. in 2018 should be accomplished;
2. There will be two witnesses at the trial of an issue, the Respondent and the Applicant;
3. Each party shall present their evidence-in-chief by affidavit, and may then be cross-examined on their affidavit by the other party. It is evident that these affidavits must be substantially improved from those submitted by both parties on this motion;
4. The Respondent’s evidence shall be heard first. He may be cross-examined by the Applicant for up to one-half day;
5. The Applicant’s evidence shall be heard second. She may be cross-examined by the Respondent by up to one-half day;
6. The trial estimate is for two days. The parties should be prepared to make their submissions on the second day of the trial of an issue;
7. The Respondent shall serve and file his affidavit for the trial of an issue by November 27, 2020. The Applicant shall serve and file her affidavit for the trial of an issue by December 11, 2020. The Respondent may serve and file an affidavit in reply, not to exceed ten pages, by December 18, 2020;
8. Materials may be served and filed by email; and
9. Once all material has been filed, the Trial Coordinator shall set the date for the trial of an issue upon consultation with the parties. If the parties are not able to agree a date, the Trial Coordinator may refer the matter to me in writing to set a date.

[17] Costs on the motion will be reserved to the trial judge hearing the trial of an issue.

[6] That trial of the said issue was held before me. All of the evidence was completed in one day, on February 9, 2021. Only the two parties testified. Brief oral closing submissions were delivered the following day, on February 10, 2021.

The Positions of the Parties

[7] Ajanaku calculates the amount owing to Adeleke as being $38,120.30. He arrives at that figure by taking the net proceeds of sale of the Clarington property currently being held in trust, $170,179.00, and deducting therefrom $87,938.40, and then further deducting $6000.00, resulting in $76,240.60, and then splitting that number in half.

[8] The $87,938.40, according to Ajanaku, is for expenses incurred by him between January 2014 and January 2020, to maintain and ready the Clarington property for sale. He wants Adeleke to pay for those expenses, presumably 100% of them.

[9] The $6000.00, according to Ajanaku, is for interest charges incurred by him on his line of credit and his credit card, which sources he had to resort to in order to maintain the Clarington property. Again, he wants Adeleke to pay for those charges, presumably 100% of them.

[10] Adeleke proposes that she receive 50% of the $170,179.00 in trust. Alternatively, she submits that any expenses that are determined by this Court to be recoverable by Ajanaku should be divided equally between the parties and not borne exclusively by her.

[11] In addition, Adeleke wants this Court to deduct the unpaid costs award from October 2018 ($4500.00), which Ajanaku acknowledges is still outstanding in full, from any amount that is found to be owing to him.

II. Decision

[12] On July 3, 2019, my colleague Justice Baltman heard a Motion brought by Adeleke. Her Honour released a handwritten Endorsement, found at pages 24-28 of Part I of the Trial Record, which neither side appears to have had incorporated into a formal Court Order. In any event, the Endorsement, transcribed, is set out below.

Motion on Notice July 3, 2019

This is the Applicant’s motion brought in response to alleged contempt of the judgment of Conlan J. In particular, paras. 51-55 thereof. The parties have not agreed on an accounting. Despite that, the Respondent/husband unilaterally has placed the house up for sale.

Neither party arrived today properly prepared to address this matter. Applicant’s counsel – the moving party – appeared unrobed, and without any clear idea of precisely what remedy he is seeking.

Initially, he agreed to the court’s suggestion that a CPL be ordered. Then he advised he in fact wants the property sold. That said counsel have failed to discuss listing price or even whether they agree on a listing agent.

Husband’s counsel recently retained, appears confused about her client’s wishes and sought to file materials late and unserved.

Out of concern that the husband is dealing unilaterally with the property despite Conlan J’s clear Order, a CPL is hereby issued forthwith on the Clarington property, being Lot 13, Plan 40M2303, S/T Easement for entry as in DR500221, Municipality of Clarington.

To restate the obvious, pending Court Order or agreement between the parties re the terms of sale or division of proceeds, the husband shall not encumber, deplete or otherwise deal with the Clarington property.

I have suggested to counsel they attempt to agree on a qualified agent to advise on listing price and, since no one is living in the property and husband wants it sold, put it on the market.

Baltman J.

[13] As can be seen, although Her Honour did not find Ajanaku in contempt of my October 2018 Judgment, Her Honour did have serious concerns about his unilateral decision to list the Clarington property for sale. I share those serious concerns.

[14] That Ajanaku unilaterally listed the Clarington property for sale is a finding that has already been made. There is no reason for this Court to disturb that finding made by Justice Baltman.

[15] It is more than that, however. Despite Her Honour’s express direction that, “pending Court Order or agreement between the parties re the terms of sale or division of proceeds, the husband shall not…otherwise deal with the Clarington property”, it is acknowledged by Ajanaku that he sold the property in November 2019, with a closing date in January 2020.

[16] There is no question in my mind that Ajanaku violated the Order of Baltman J., as his acceptance of a conditional offer to purchase was certainly “dealing” with the Clarington property, and there is no evidence before this Court that, in November 2019, there was in existence a Court Order or agreement between the parties regarding the terms of sale or the division of the proceeds of sale.

[17] It is more than that, too, however. Ajanaku acknowledged during his direct evidence at trial that, during the July 3, 2019 Court attendance before Justice Baltman, when he had his own counsel representing him, he offered and Adeleke accepted to settle the remaining dispute about the Clarington property by him paying to her the sum of $70,000.00. He further acknowledged that the said offer and acceptance were also confirmed in writing (see pages 176-179 of Part II of the Trial Record).

[18] Ajanaku explained during his direct evidence at trial that he cannot now honour that agreement because the property ended up selling months later and for less money than he had anticipated, and also he incurred more expenses to carry the property in the interim.

[19] In cross-examination at trial, Ajanaku explained to counsel for Adeleke that the said agreement between the parties was conditional on the property selling at that time.

[20] I do not accept that evidence of Ajanaku as it is completely and unequivocally defeated by the wording of his lawyer’s letter dated July 9, 2019, which letter is found at pages 176-177 of Part II of the Trial Record and was marked as Exhibit 5 at trial. Simply put, the agreement between the parties was not conditional on the property selling at that time.

[21] Thus, to summarize, at a minimum, without addressing other ways in which, according to counsel for Adeleke, Ajanaku is in breach of prior Court Orders, Ajanaku

(i) violated the October 2018 Judgment when he unilaterally listed the Clarington property for sale, as found by Baltman J.; and (ii) violated the said Judgment in failing or refusing to pay the relatively modest costs that were ordered against him; and (iii) violated the Order of Justice Baltman when he sold the property in November 2019, absent any Court Order or agreement between the parties regarding the terms of sale or the division of the proceeds of sale; and (iv) now wants to resile from a clear settlement agreement reached between the parties on July 3, 2019 (as also referenced by Justice Gibson in His Honour’s Endorsement referred to above).

[22] An unenviable track record, indeed.

[23] Ajanaku is an intelligent and articulate man. I know that from hearing two trials with him. He has always been polite and courteous, well-prepared and well-spoken, even when questioning Adeleke, which cannot be easy for him to do.

[24] I also understand Ajanaku’s frustration in not always receiving timely responses to his enquiries directed to counsel for Adeleke, and I sympathize with the stress that he says he has been under in trying to maintain the Clarington property, alone. Perhaps he should have thought more carefully about that when he opposed the idea of selling the property in the Fall of 2018 and settling everything with Adeleke in one fell swoop.

[25] There must be consequences for his transgressions, however. The Court cannot condone the habitual flouting of Orders. I conclude, therefore, that Ajanaku is disentitled to anything but an equal division of the proceeds of sale currently being held in trust.

[26] Ajanaku argues that a result like that will produce a windfall (my word) for Adeleke, because she will benefit from the renovations that he had done on the Clarington property but not be responsible for paying anything towards them.

[27] I respectfully disagree. When I asked Ajanaku, in closing submissions, to point me to the evidence in support of that argument, he took me only to the CIBC appraisal on the property, at $555,000.00 (see his July 27, 2020 Affidavit marked Exhibit 1 at trial), and the ultimate sale price of $605,000.00.

[28] As counsel for Adeleke correctly points out, though, the said appraisal is of very limited evidentiary value because it is from 2017, long before the property was sold and well before Ajanaku allegedly spent $52,550.00 on the renovations.

[29] There is no reliable evidence before this Court to ground a finding that the said renovations improved the market value of the Clarington property by any discernible amount of money.

[30] Finally, I recognize that half of the amount currently being held in trust is more than $70,000.00, which sum Adeleke was at one point prepared to accept. That does not change my view, for two reasons. First, she was supposed to have received that pay-out a long time ago, in July 2019. Second, when Ajanaku brought his Motion before Justice Gibson, and when he proceeded to the trial before me, he knew or ought to have known that he could end up having to pay more than the $70,000.00 previously agreed to. That is the natural consequence of failing or refusing to adhere to the settlement.

The Order of this Court

[31] For all of the foregoing reasons, I accept the position advanced by Adeleke and hereby order that Ajanaku shall forthwith pay to Adeleke, out of the proceeds of sale currently being held in trust, the sum of $89,589.50.

[32] After that payment to Adeleke is made, the remaining funds currently in trust shall be dispersed to Ajanaku.

[33] The $89,589.50 is arrived at as follows: $170,179.00 divided by two = $85,089.50. That sum plus $4500.00 (the outstanding costs from more than two years ago) = $89,589.50.

Costs

[34] Normally, Adeleke would be entitled to some costs. If not agreed upon between the parties, I will accept brief written submissions. Counsel for Adeleke shall file within 30 calendar days of today, limited to two pages excluding attachments. Ajanaku shall file within 15 calendar days of his receipt of Adeleke’s submissions, again limited to two pages excluding attachments. Without leave of the Court, no reply is permitted.

[35] Any submission that does not comply with those parameters will not be considered.

(“ Original signed by ”)

Conlan J.

Released: February 18, 2021